The Short Version

This is an abbreviated version of my aforementioned article. It runs a bit long at 30 pages (if you're interesting in reading it, but not all of it, Sections II and IV are the heart of the argument.), so I'm putting down a greatly truncated version here (an implication of which is that the argument is better and more complete in long-form). If this piques your interest, please download a free copy of the article to peruse at your own leisure.

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Theoretical Problems with Strict Separationism

In my paper I outline several problems with strict separationism. However, by and large the most prominent is how strict separationism encourages legislatures to pass so-called “generally applicable” laws. These laws are distinguished by the fact that they do not single out or otherwise “notice” religion in any way whatsoever. They apply equally to persons of all (or no) religious faith. It is obvious that a “general” law can have drastically different implications for different faiths. For example, a law categorically barring the consumption of wine would be devastating for Catholics but relatively inconsequential for Buddhists (I’ll use this as an example because I trust the Catholic practice at issue is familiar; I’m not expressing an opinion as to whether Catholics are disadvantaged faith). However, from a religious liberty perspective the problem is the burdens these generally applicable laws distribute will inevitably fall overwhelmingly on minority religions. This is not necessarily a result of overt hostility to minority faiths. Laws will rarely stand in opposition to Christian religious practice, because most legislators are Christians and will be aware of the potential conflict (and won’t want to harm their own faith). Lawmakers are simply more likely to notice when majority practice might be implicated in a law (or be responsive to constituent reports of religious burden or hardship) than if a politically powerless minority sect faces similar problems. Even if made aware of this religious hardship, it may be difficult for a legislator to conceptualize the burden a law places on an uncommon or unfamiliar religious practice, and fairly weigh that against the interests the proposed law is meant to achieve.

Despite being saddled with an intrinsic bias, however, the rhetoric of a “neutral” or “generally applicable” law implies that deviations are a demand for special rights or privileges and thus would constitute religious favoritism. Insofar as minority faiths do inevitably deviate from a norm based on a Christian template, their requests for accommodation would be a facial violation of strict separation and will be summarily rejected. An exemption for Catholics to our “no drinking wine” law could not survive such review, for example. Hence, strict separation will only treat disfavored groups equally insofar as they are similar to or consistent with the dominant paradigm. But if we are to conceive of the religion clauses as protecting religious distinctiveness (that part of having the religious freedom to be Jewish means not having to make your practices Catholic), this schema is a wholly inadequate defense of religious liberty.

The Anti-Subordination Alternative

There is an alternative to the separationist formulation of the First Amendment that is consistent with our desire to protect minority religious traditions. Instead of mandating strict separation in all cases, including those in which that doctrine is interpreted to require state suppression of minority religions under the guise of “neutrality,” the First Amendment “should be read to protect minority religious beliefs and practices from being burdened by government and…equalize the status of minority religions before the government with that of majority faiths.” This is freedom of religion as an anti-subordination principle—concerning itself primarily with the status of religious minorities and insuring that they are placed on equal footing with majority faiths.

Anti-subordination is not a constitutional “test” as much as an outlook or a framing point that directs what ends the legal system desires the religion clauses to achieve. Ruth Colker articulates the view of anti-subordination as believing that “it is inappropriate for certain groups in society to have subordinated status because of their lack of power in society as a whole.” This is contrasted with the “anti-differentiation perspective,” which holds that “it is inappropriate to treat individuals differently on the basis of a particular normative view [about their group membership].” In other words, if we are committed to treating two groups equally under anti-differentiation, we must treat them precisely the same, while if we are committed to equality as anti-subordination, we must treat them in a manner so as to equalize their status in society, which may require disparate treatment. Anti-differentiation manifests itself in separationism insofar as the principle facially condemns disparate treatment between religions, as well as between religion and irreligion. It is thus officially agnostic to the manner which equal treatment might yield unequal effects or results. Anti-subordination sees the harm not necessarily in the particular treatment government metes out to religious or secular actors, but in the resulting effects such treatment has on those groups’ equal status in society. To return to the wine case, anti-differentiation would notice only that Catholics and Buddhists are being treated the same, and that an exemption would treat them differently (and thus unequally, and thus illegitimately). An anti-subordination stance would notice that the wine law impacts Catholics and Buddhists differently, and that it has the effect of subordinating the Catholic faith by proscribing a crucial element of its faith. Moreover, if an exemption were granted, Buddhists would not see themselves as being disadvantaged or subordinated to Catholicism (assuming they too received exemptions in analogous cases where they are on the bottom). Using an anti-differentiation principle would do nothing to “protect” Buddhists and would do serious damage to Catholicism. So anti-subordination would advocate granting the exemption, differential treatment notwithstanding.

Articulating the First Amendment from this framework would, in my opinion, yield significantly different jurisprudence. By recognizing that difference is a relative term, it would reject the “original entitlement” the dominant party claims by virtue of its dominance, by which the subordinated party’s difference/deviation is made into a justification for unequal treatment. Generally speaking, a view from the perspective of the minority group will not condition equality on sameness with the majority, but rather will define equality as equal entitlement to pursue their own conception of the good. At the very least, an affirmative effort to include subordinated perspectives into legal discourse would enhance their moral and democratic legitimacy, for as Iris Marion Young argues, “Normative judgment is best understood as the product of dialogue under conditions of equality and mutual respect. Ideally, the outcome of such dialogue and judgment is just and legitimate only if all the affected perspectives have a voice.” Insofar as some voices are not represented in the status quo, legal actors must proactively work to insure that the voice of the minority—be it Jewish, Muslim, Atheist, or other—is included and fairly considered in the proceedings.

Objections

1) Isn't this biased in favor of minorities?
Well, yes and no. What anti-subordination recognizes is that different groups, in order to be truly equal in society, may need different treatment. Laws are written with the majority in mind and their interests should be protected via democratic processes. The same can’t necessarily be said for minority groups. This is why we have judicial review in the first place. So in that sense, it provides a different type of review for minorities, because they’re in a different situation in our society and polity than majorities. Ironically enough, though, in many of these cases the legislatures were quite protective of minority rights, carving out exemptions for faiths which requested it, only to see their laws struck down as religious favoritism. In that case, anti-subordination acts as a constraint on courts to stop them from interfering with the democratic process as it tries to accommodate religious difference.

What I will say is that if we understand the religion clauses as expressing a constitutional aspiration that all faiths (or all those compatible with basic liberal premises) should be free to exercise their religion in their own autonomous and distinctive manner, then we will almost definitely have to pay special attention to minorities whose faiths and practices are unfamiliar or strange. You can’t see through a wall (of separation), and this blindness is a major obstacle to writing legislation and policies compatible with religious pluralism.

2) What about the human sacrifice religion?
To go into a bit more technical constitutional nomenclature, anti-subordination would in large part restore the Sherbert test (largely abandoned by the Supreme Court in the 1990s) for Free Exercise cases, which demands that laws which impede on religious practice be supported by a “compelling state interest.” This is the same standard that the Court uses to analyze other rights claims—free speech, freedom of assembly, equal protection, etc.. Though it is a stringent standard, certainly it is not impossible to meet, and preventing killings (along with a wide array of other rules necessary to keep intact a liberal, civilized society) would easily survive it. The point is to enshrine religious pluralism (including the right to distinction from prevailing norms) as a constitutional value. This clearly does not mean this value cannot be “trumped”—but we should be explicit when we do so, and what I’m rejecting is that an “anti-differentiation” or “strict separation” principle is strong enough to trump by itself.

3) What counts as a “minority” faith anyway?
This, actually, is the toughest question. In general, I mean “non-Christian” faiths, because America is a Christian dominated polity. Our very conception of religion is premised around a Christian template (for example, there have been reams of paper written on how the constitutional privileging of belief over action is a Christian model that was designed to stand in contrast to Judaism, which holds the reverse), every legislator is aware (or soon will become aware) of basic Christian religious practices, and there is close to zero chance of an American polity passing a law severely burdening mainstream Christian religious practice. Nonetheless, I recognize that certain Christian sects may be likely to face severe burdens that rise to the level of subordination (Jehovah’s Witnesses are the obvious example).

The tougher case would be a village or town that is overwhelmingly of a non-mainstream religion. I do not oppose the existence of minority-dominated localities—in addition to the fact that many religious traditions require this sort of seclusion, such an opposition would be fundamentally biased: nearly every town is Christian-dominated—there is no reason why disadvantaged groups should be “locked in” to minority status at every level of governance if they desire some level of local autonomy or a community where their culture is the norm (and not an “exemption” or “accommodation”). That notwithstanding, in such situations it is still quite fair to examine whether or not a Christian “minority” is being treated fairly and equally. In short, anti-subordination is aware of the potential for subordination of the nationally dominant faith in a minority-comprised locality. However, it does not view the mere existence of such locales as constituting subordination.